The vast majority of Tallahassee criminal defense work does not make the newspaper. The lion’s share of alleged criminal activity is generally mundane to everyone who is not directly involved. There is often very little interest from the media even when misguided defense lawyers try to artificially manufacture widespread attention. I have never seen media interest or public curiosity actually help a defendant with his or her case. I am sure that there are some examples of such help occurring by way of the “Fourth Estate” – I am not personally familiar with any. On the other hand, media attention has more predictably interfered with the few cases I’ve worked during which it became an issue.
When media concern does enter into a case, it is generally not such a great development for the defendant or the defense lawyer. When I first got into the criminal defense business, I was given the stern, but sage advice to “never read the coverage.” I am not sure ignoring the coverage was ever really possible; defense lawyer egos require immediate attention to all public discussion of any worked case. But I was told early on to avoid reading the coverage lest it impact the actual lawyering that needed to be accomplished. This was back in the days when news websites with “comment” sections were in their nascent stages.
Since those early days, and much to my chagrin as a news reader, almost every news website now has developed a “comment” section. These are sections where every reader, no matter how educated or untaught, can leave a comment underneath a given story. Often these comments read like a transcript of late night barstool discussion. To a younger lawyer today, I might advise reading the actual coverage but skipping the comment section. The coverage might directly relate to the case at hand. However the comments are generally gibberish from the uninitiated peanut gallery comprised of individuals who are misinformed about your facts. Additionally, any useful information you could hope to glean from the comment section will be offset by the tide of deeply held prejudice which invariably appears. Posters, comfortable behind keyboards and cloaked in anonymity, feel free to release unexamined vitriol at an alarming rate.
In the age of pervasive electronic communication and social media – the defense team has someone reading the comment sections in almost every big case. This happens here in Tallahassee and it is also the norm elsewhere. Generally the designated readers are looking for juror misconduct (“Posting from the deliberation room!”) but it now appears there is something more ominous which needs to be monitored.
What about commenters who seem to know more than the average Joe? Could there be something more sinister than general stupidity or juror misconduct afoot? Could the State/Government be actively using the comment section to sway public opinion against your client?
This is what appears to have happened in New Orleans. As reported by CNN, US District Judge Kurt D. Engelhardt ordered a new trial for five former New Orleans police officers who had been convicted of civil rights violations in connection with the shooting of unarmed citizens at the Danziger Bridge following Hurricane Katrina.
Judge Engelhardt’s 129-page ruling reads about as pleasantly as you’d expect from a judge who orders a new trial in a case where (it appears) he spent years overseeing an emotionally/politically charged tangle at the cost of millions of dollars:
The first reaction a criminal defense lawyer will have to reading the order is sheer amazement that the lawyers at the US Attorneys Office got themselves into such an embarrassing position. (The senior Assistant US Attorney assigned to head a court-ordered investigation into an information leak in the comment section at NOLA.com was, all along, one of the offending anonymous commenters.) The second reaction, which happened here, was an examination of prior comment section posts about cases we’ve handled.
I had a suspicion about a comment posted on a Tallahassee.com story about four years ago. The commenter, sternly pro-prosecution, discussed the scoresheet my client and I could expect to see at sentencing. Criminal Punishment Code scoresheet preparation is a typically esoteric exercise wherein even trained professionals make mistakes. Scoresheet preparation is not something that the average Joe would be comfortable describing. That case is still pending. Perhaps we can work this into something on which we will comment in the future.